Michael Kirk (1996):
Land Tenure Development and Divestiture in Lao P.D.R.

5. Administration of Land and Related Resources

An administration which is functional, deals flexibly, and is capable of cooperation and communication at all levels is an elementary precondition for implementing the new legal framework locally and also for enforcing the law. Without this, neither property rights for agricultural, forest and commercial utilization can be newly granted or confirmed especially in the districts and villages, nor is a documentation of the transfer of land possible. The same is so for the control of sticking to land use patterns (plots for cropping and pasture, protected land, shifting cultivation and conservation areas).

1. As a part of its shift towards a market economy, the Lao PDR is now reforming its institutional apparatus by reorganizing existing institutions and creating new ones and by clearly demarcating the roles of executive agencies and line ministries (Kaosa-ard et al. 1995). The following processes in the direction of centralization and decentralization must be observed:
2. Centralization took place in that the attempt was made to reduce the very far-reaching autonomy of the provinces from the socialist period, and to transfer key responsibility to the national level. Their previous independence allowed provinces to apply the revenue from forest concessions as they chose and led to their being virtually independent of line ministries. [FN 47] In the course of administrative decentralization, provincial and district level agencies were integrated in a single system with centralized budget allocation, but were given the responsibility of executing national programs at local levels.
3. The establishment of a clear distinction of roles and functions between agencies responsible for overall executive government functions (like STENO) and line technical agencies (like MAF) took place. The latter are responsible for sectoral technical programs, while the former are responsible for macro-level policy formulation and implementation.
4. Decentralization was apparent in that subordinate authorities, such as the Land Office or DAFS, were allotted clear tasks and responsibilities through the reorganization of their ministerial superiors. At least formally, they have more freedom in deciding and acting in the implementation of laws locally, and resolving conflicts.

According to this, the following basic principles determine the administration of natural resources at the various regional levels (Hirsch et al. 1994).

1. With the reorganization of the Ministries at the national level, the administrative structures of the Ministry of Finance (MoF) and the Ministry of Agriculture and Forestry (MAF) take on key functions in resource tenure legislation and daily land management issues. The main thrust of this reorganization was to decentralize the Ministries, making them a vertically structured organization with overall sectoral management and supervisory responsibilities from the central government through the provincial and district levels (World Bank 1995a). In addition, the passing of numerous decrees and regulations was necessary for establishing the institutional arrangements for the implementation of land/resource administration policy [FN 48] . According to this, the Department of Forestry has the task of "studying and executing strategic guidelines, policy, law and regulations concerning national forestry management and development based on the general directives and general policy of the party central and the government" (Tasks, Rights and Duties of the DoF 1995). In doing so, the implementation of the regulations can independently be brought on through the passing of orders, regulations, instructions and announcements.
2. Provincial authorities are now responsible for transmitting central government policy measures to District levels. In the area of resource tenure and management, provincial authorities are only concerned directly with larger scale operations (sawmills, resettlement).
3. The District level administration is more directly involved with the implementation of the new legislation and plays the key role in local resource management and decision making, i.e. in the allocation of land for various purposes at the village level, such as Forest Management Planning Areas, the Forestry Management Plans (see below) or to adjudicate in disputes between communities over land.
4. At the village level, there are two main formal organizational structures. The Village Committee [FN 49] (Khana Baan) is the primary body responsible for day to day administrative affairs. It also takes on responsibility for the administration and adjudication of traditional resource management rights and responsibilities. Along with this it carries out the instructions of the District Administration in the village. Additionally there is a council of elders in the villages which provides advice to the Village Committee and is also often involved in adjudicating conflicts including resource management conflicts. [FN 50]
5. Since water utilization rights are still barely regulated, water management normally takes place at the household level. Irrigation is used communally, sometimes among a few households, sometimes at the village level, depending on its size.

But as can be observed in other countries in the process of transformation, the existing administrative system in Laos also presents, in spite of endeavors to make reforms, a serious bottleneck in the successful dismantling of the state at the local level and in the implementation of institutional reforms in the country. Indeed the MAF is supposed to evaluate policies, establish priorities, implement programs, and coordinate donor-funded projects, but the legal mandate for the central government to play this role is relatively new and the practical implementation of this role vis-à-vis the provincial governments is tenuous. The capacity to be able to implement priority interventions at the village, district, and provincial levels is likewise very limited (World Bank 1995a). There is an additional problem which is that the communication between local, provincial and the central administration is still very poor.

In spite of the numerous decrees for structurally reorganizing the MAF, the redirection of human and financial resources to priority areas is made difficult by the lack of clear linkages and communications between the different levels of government. The organizational, structural, and procedural environment is in a state of flux with considerable ambiguity regarding the roles and responsibilities of the central and provincial governments. The implementation of the new structure is far from being complete since it is especially the communication between the provincial and national levels which is lacking. The provincial agricultural and forestry services (PAFS) retain considerable autonomy and nothing approaching a unified national system of (land) policy formulation and resource allocation is yet in place. The autonomy can also lead to existing decrees being ignored and well-worn practices being continued with (bribery to ensure illegal logging quotas). But this autonomy also has the reverse effect, that extensive independent initiatives get developed. The Luang Prabang and the Sayaboury Provinces have accordingly "translated" these into their own instruction manuals on agricultural land and forest allocation (Gaston 1995b). Luang Prabang has also prepared a set of provincial instructions for the implementation of the Land Decree (No.99) and the Land Tax Decree (No. 50). [FN 51]

The resource legislation passed in 1989, in particular Decrees 169 and 186, emphasizes decentral decision structures and the systematic involvement of stakeholders, for example for village land use planning and conflict arbitration. A legal framework oriented towards participation presents considerably greater demands on bureaucracies and additionally overloads the capacity for implementation of the established administration. A high degree of self-initiative and willingness to take on responsibility is expected from all levels which has not been fulfilled in a command and control system (cf. Figure 4). A great deal of value is put on the protection of forest resources in these decrees. But so far there has hardly been any viable dialogue built up between the state represented by the local administration and the village population for finding out how the villages can increase their competence so as to achieve this resource protection.

The economic liberalization in all sectors and the quick economic change have given the administration additional areas of responsibility and put them permanently under pressure to make decisions (allocation of logging licenses, making contracts with village communities, earmarking of protected zones, tax collection, etc.). The allocation of logging licenses requires completely new coordination structures from the MAF with the FIMC, but also in particular with the province level, which alone possess the technical competence for estimating the value of the license.

These new challenges lead, as in other countries in the process of transformation, e.g. noticeably in Uzbekistan (Eckert/Elwert 1996), to inaction and heavily delayed action by handing cases on to the highest level through fear of sanctions and making wrong decisions. The letter and spirit of the newly created framework laws remain thus unfulfilled.

The strain and workload are increased by the high expectations of the international donors. The proliferation of donor projects, although individually worthwhile, has made it difficult to develop coherent national strategies and to implement them at the local level. In view of the scarcity of personnel and completely inadequate education and training, the authorities try to first of all fulfill the demands of the project sponsors which already takes up their limited capacity. Since these projects are constantly subject to quality control by evaluation, they put the pressure on for quick implementation of the planned activities, often especially in out-of-the-way provinces and districts. The implementation of further institutional reforms, such as legal plans in villages, can accordingly only be moved on sluggishly.

It remains difficult to understand how the administration could take over these additional tasks given the state of training and the amount of personnel. Before employing this apparatus for land use planning, it is urgently necessary to make sure that the legislation is sufficiently disseminated and understood. The challenges are all the more serious since special programmes for dissemination of the new legislation already initiated by the Ministry of Justice and financed by international donors have only had limited success.

Taking the example of the implementation of Decree 169, the district and local levels, the duties, responsibilities and coordination needs for the District Administration (DAFO) and the current implementation bottleneck become clear (Figure 4):

• A multitude of new committees were created through the new legislation with ist participatory approach, which must do more than to just give lip service to their objectives. There is a great danger of every legal novelty creating further ones also as the result of the lack of coordination between Ministries. Parallel legal systems would be unwelcome especially for everyday situations.
• International donors are tempted to bring new structures to life within their project regions instead of strengthening and further developing the ones which are already there.
• The various responsibilities of the DAFS in the committees are already very extensive. More and more coordination tasks are added by work with other ministries, with State planning organizations, donors and with foreign investors. It is very doubtful if the current personnel is really able to keep up with the legal regulations.
• Problems of responsibility are unavoidable, not only between ministries, but also within the Departments for Agriculture and Forestry in the MAF, for both of them have unclear mandates (agricultural land), but the legislation in the operational area of the DoF is already far more extensively reformed than in the area of agriculture.

Figure 4: Duties, Responsibilities and Coordination Needs for MAF/DoF to Implement Decree 169 (On the Use of Forests and Forest Lands)